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Protections for Disabled Veterans in the Private Workplace

Posted by Giovanna A. D'Orazio | Dec 05, 2017 | 0 Comments

Veterans with disabilities are protected in the private workplace under two major federal statutes: the Uniformed Employment and Reemployment Rights Act (“USERRA”) and the Americans with Disabilities Act (“ADA”).

What is USERRA?

 

USERRA applies to all service members regardless of whether or not they are disabled.  It prohibits discrimination based upon military service and requires employers to save individuals' jobs when they are engaged in military service, including training.  As discussed further below, it has not been definitively decided if USERRA covers a claim for disability discrimination in addition to and as distinguished from a claim for military service discrimination.  But USERRA does provide other protections to disabled veterans.  For example, if a covered employee is disabled, USERRA requires employers to make reasonable efforts to accommodate the disability.  This is similar to the requirements of the ADA, discussed further below.  USERRA goes further than the ADA, however, and, if a disabled veteran is unable to return to his previous position because of a disability, USERRA requires the employer to assist the veteran in becoming qualified for another position.  USERRA also prohibits retaliation for opposing violations of the statute. 

USERRA provides a private right of action for individuals who have been aggrieved by violations of the statute.  In layman's terms: you can sue.  Typically, a USERRA case would be commenced in the federal district court where the employee resides and is employed.  The statute is unique in that it does not contain a statute of limitations, meaning that there is no time deadline within which to file your lawsuit.  Generally, employment claims are subject to very strict time deadlines.  USERRA also provides for liquidated damages which is similar to a penalty where, if he or she prevails, the employee is awarded an additional sum equal to his or her lost wages. 

What is the ADA?

The ADA is the federal statute protecting individuals with disabilities from workplace discrimination and requires the provision of reasonable accommodations to disabled workers.  As noted above, it has not been definitively decided if USERRA encompasses a claim for disability discrimination as opposed to discrimination based upon the military service itself.  Therefore, if a veteran or service member has been discriminated against because of a disability, a lawsuit may be more appropriately fashioned as an ADA lawsuit as opposed to a USERRA lawsuit.  Alternatively, both statutes may be invoked.

In addition to prohibiting discrimination because of a disability, the ADA requires an employer to reasonably accommodate a disability. Reasonable accommodations are those which allow the employee to continue performing the essential functions of his or her position and which do not pose an undue hardship on the employer.  Reasonable accommodations can include things like a brief medical leave of absence, light duty or use of necessary equipment like a chair or hearing aid.  Sometimes a reasonable accommodation may include transfer to a vacant position, but not always.  The ADA also does not typically require a position to be created for the disabled employee.  This is where USERRA goes further.  Accordingly, if a service member has been denied an accommodation or a new position, there may be claims under both statutes.  The ADA also prohibits retaliation for opposing violations of the law, as well as retaliation for requesting a reasonable accommodation. 

Unlike USERRA's lack of a statute of limitations, the ADA has a strict requirement that a claim be filed with the EEOC within 300 days of the adverse employment action complained of.  The adverse employment action can be the date a request for an accommodation was denied or some other adverse action alleged to be discriminatory like a termination or a demotion.  The EEOC will then have 180 days to investigate the claim.  After that time period has passed, if an employee wishes to pursue a lawsuit, he or she may request a Notice of Right to Sue.  The EEOC will also issue that Notice in the event it dismisses the employee's claim either because it does not have sufficient information to make a determination or if it finds that there is no probable cause to find that discrimination occurred.  Even if the EEOC finds against the employee, he or she may still file their claim in federal court after receiving this Notice.

This is not an exhaustive list of protections for veterans or veterans with disabilities.  New York State law also includes protections under the Human Rights Law, the Workers' Compensation Law and the Military Law.  The federal Family and Medical Leave Act also protects individuals with serious health conditions and family members of service members on active military deployment as well as service members who have been injured.

If you believe that you have been discriminated against or denied an accommodation, give us a call. We are happy to see if we can help.  

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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